Ethical Dilemma on a Whale Watching Trip

This assignment presents a scenario involving a whale watching tour guide named Alice who faces an ethical dilemma when a client, Marcos, is injured during the trip. While most clients demand to continue viewing whales, Alice must decide whether to prioritize their wishes or attend to Marcos's urgent medical needs. The assignment examines various ethical frameworks, including Utilitarianism and Virtue Ethics, to analyze the situation and propose appropriate courses of action.

Running Head: COMMERCIAL LAW
Commercial law
Name of the Student:
Name of the University:
Author Note

1COMMERCIAL LAW
Table of Contents
Part A...............................................................................................................................................2
Issue:................................................................................................................................................2
Rule:.................................................................................................................................................2
Duty of care.....................................................................................................................................3
Breach of duty of care......................................................................................................................3
Causation.........................................................................................................................................4
Remoteness of damage....................................................................................................................4
Contributory Negligence.................................................................................................................4
Application......................................................................................................................................5
Conclusion.......................................................................................................................................8
Part B...............................................................................................................................................9
a) Ethical approach of Alice in this scenario-...........................................................................9
b) Factors and tensions that should have been balanced in this situation.................................9
c) Ethical approaches to be utilized by me had I been in Alice’s position...............................9
Bibliography..................................................................................................................................11

2COMMERCIAL LAW
Part A
Issue:
 Was there negligence on the part of Alice?
 Does Marcos have the right to claim damages from Alice?
Rule:
In the Australian Common law the provisions dealing with negligence have been
incorporated in the notable case Grant v Australian Knitting Mills. PC 21 OCT 1935. It is to
be mentioned that the legal provisions related to negligence was first established in the
remarkable case Donoghue vs Stevenson [1932] AC 562. In this case Mrs Donoghue had
sustained damages after consuming beer from a bottle which contained the decomposed remais
of a snail. Her claim was upheld and it was decided that to establish that the defendant was
negligent in performing his actions it must be proved that:
 The defendant had a duty of care to the claimant
 The defendant had breached such duty
 The damage caused to the defendant was in direct result of such violation of duty
 The damage sustained by the claimant was not remote
Duty of care
The first essential element which has to be proved in order to establish negligence is the
duty of care. It has to be proved a duty of care to the plaintiff was owed by the deendant. To
assess the duty of care the court generally applies the Caparo test which was first applied in the

3COMMERCIAL LAW
case Caparo Industries pIc v Dickman [1990] 2 AC 605. The objective of the test is to assess
if the actions of the defendant could foreseeably harm others. In this case it was held that
defendant did not owe duty of care as the auditors were not aware of the existence of Caparo and
that there was no proximity between the auditors and Caparo.
Breach of duty of care
It is important to establish that there was a breach of duty of care on the part of the
defendant. Breach of duty of care is thus the second essential element for proving negligence. It
is to be mentioned that the objective test is applied by the courts to determine and assess whether
the defendant had breached his duty to take care. Such objective test was applied first in the case
Vaughan v Menlove (1837) 3 Bing. N.C. 467. In this case the haystack of the defendant had
caught fire due to poor ventilation of the room in which the haystack was kept. The defendant
had argued that he had taken that decision in his best judgment. However the court held that this
was not enough and the actions of the defendant are to be judged by the standard of a man who is
reasonable in nature. The aim of the objective test is to identify whether a reasonable person
placed in the position of the defendant would have acted in the same way or would have taken
any additional care. If it can be proved that such person, who is reasonable, would have taken
additional care to prevent any damage to be caused to anyone due to his actions, it would be held
that the defendant breached his duty of care.
Causation
The third important essential in establishing negligence is causation of the damage. It has
to be proved that the damage caused to claimant was the due to the negligent action of the
defendant. The courts generally apply the ‘but for’ test in determining whether the damage

4COMMERCIAL LAW
caused to the claimant was a direct result of the defendant’s negligent action. The ‘but for’ test
was first applied in the case Barnett v Chelsea & Kensington Hospital [1969]. In this case it
was held that the hospital authorities were no to be held responsible for the failure of the doctor
to diagnose the patient as the cause of death of the plaintiff was not a direct result of such failure
to diagnose. The ‘but for’ test assesses whether the result would have been the same but for the
omission of the action of the defendant. If it is found to be the same, then the defendant cannot e
held liable.
Remoteness of damage
It is to be mentioned that the defendant can be held responsible for the damage sustained
by the claimant only if such damage was reasonably foreseeable to the defendant as held in the
case The Wagon Mound no 1 [1961] AC 388. In this case it was held that a test of remoteness
can be applied to assess whether the damage sustained by the claimant is remotely foreseeable. If
such damage caused was foreseeable, the defendant would be held responsible. In the case
Murphy v Brentwood DC [1991] AC 398 the same test was applied.
Contributory Negligence
It can be stated that damages claimed by the claimant would be significantly reduced if
contributory negligence is established as held in the case Railways v Halley [1978] 20 ALR
409. One of the most favorable grounds of defense available to the defendants in negligence
cases is contributory negligence. Contributory negligence is established in situations where the
injury or damages sustained by the claimant is caused partially due to the negligence on the part
of the defendant as well as on the part of the claimant. To establish contributory negligence, it
has to be proved that the plaintiff failed to take reasonable care for their own safety. It is to be

5COMMERCIAL LAW
mentioned that the amount of damages claimed will be reduced based on the extent of the
plaintiff’s contribution to the loss suffered. However, it can be mentioned that such failure to
take care was a contributory cause of the damage suffered by the plaintiff as held in the case
Capps v Miller [1989] 1 WLR 839 . However lack of proper care for own safety is subjective
and differ from standard breach of duty of care as held in the case Davies v Swan Motor
co [1949] 2 KB 291. The case Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 deals
with the provisions of contributory negligence in slip and fall case. In the aforementioned case
the court found the plaintiff to be 70% contributory negligent as he did not hold any hand rails
while walking on a wet floor in spite of reading a signpost about the wet floor.
Application
In this chosen case study, first it is to be assessed whether Alice had a duty of care
towards her clients, Xi and Marcos. Xi and Marcos had booked two adult tickets on the vessel of
Alice which had taken them to the sea so that they could have wonderful whale watching
experience. Therefore, Caparo test as discussed above can be applied in this case study. Alice, in
this case could have foreseen that her actions could have adverse effects on her clients as they
completely relied on her actions. Thus, it can be proved that Alice had duty of care towards the
aforementioned parties.
The next step is to identify whether Alice had breached her duty of care. The objective
test can be applied to this case study in order to assess whether any reasonable person would
have taken addition care in order to prevent any damage caused to her clients or would have
acted in the same way as Alice. In this case it can be said that any reasonable person would not
have over loaded the boat or would have focused on the safety of the passengers instead of

6COMMERCIAL LAW
chasing the whales. It can further be mentioned that any reasonable person would have steered
the boat in the direction of the harbor and would have rushed in an event of medical emergency.
However, Alice chose to continue the tour neglecting the seriousness of the injury sustained by
the clients. Any reasonable person would have incurred the costs for installing the mats on the
floor of the boat to ensure that passengers would not slip and fall which Alice had not done.
Therefore, it can be established that Alice had breached her duty of care to her clients. The
actions of Alice cannot be justified.
The third step is to identify if the damage sustained by the parties is a direct cause of negligent
actions of the defendant. In this case the ‘but for, test as discussed above can be applied to assess
whether the parties in this case study would have sustained the injuries in the event of omission
of Alice’s Actions. It can be said that the party, Marcos had sustained the injuries after slipping
and falling in the vessel provided by Alice. It can be mentioned that had had slipped as the entire
floor of the vessel was not matted properly. Moreover, the vessel was over crowded due to which
he did not enough space to sit and had to stand for the entire trip. It can be mentioned that the
injuries sustained by Marcos was primarily due to the negligent actions of Alice. In addition
Alice did not take immediate action after Marcos sustained injuries. Therefore, it can be
established the claimant would not have injured himself had it not been for the negligent action
of the Alice
The fourth essential element in establishing negligence is foreseeability. It is to be stated
that damages can be claimed by the plaintiff for the injuries sustained only if it is reasonably
forseeable. In this case study, any reasonable person placed in the position of the Alice would
have foreseen the injury sustained by Marcos. Any reasonable person would have foreseen that
overloading the boat beyond its capacity and not matting the floor could result in an accident

7COMMERCIAL LAW
involving any of the clients. Further it can be said any reasonable person would have foreseen
the seriousness of the injury sustained and would have immediately taken the boat to the harbor
instead of carrying on with the trip. Therefore, it can be established that the injury sustained by
Marcos was foreseeable to Alice and she completely ignored them.
However, there is one partial defense available to the defendants in claims of negligence.
The defense of contributory negligence is the most popular defense ground as applied in the case
Railway vs Halley. If contributory negligence is established, the amount of damages claimed can
be significantly reduced. In this chosen case study, it can be noted that the clients had been
instructed to wear closed in foot on the vessel. The same instruction was provided as a
requirement in the booking confirmation email which was received by Marcos and Xi. However,
the claimant Marcos was not wearing closed in footwear. He was wearing slippers. He neglected
that requirement and boarded the vessel wearing slippers. Therefore if the judgment of the Mac
Donald’s case is applied in this scenario it can be said that, Marcos is contributory negligent and
he had slipped due to not wearing closed in shoes as instructed and was not holding the hand
rails. Had he been wearing closed in footwear, he might not have slipped and fallen and therefore
not injured himself. However, this possibility is a hypothetical one and therefore is debatable. It
can be mentioned that defense of contributory negligence is partial and thus Alice cannot avoid
the entire liability.
Thus after analyzing the facts of the case and applying the legal provisions to the facts it
can be stated that Alice had a duty or care to the claimant, she breached her duty of care, the
injury sustained by Marcos was caused by the negligent actions of Alice, the injury sustained by
Marcos was clearly foreseeable. Therefore negligence on the part of Alice can be established.

8COMMERCIAL LAW
However, there was negligence on the part of Marcos as well and therefore damages
claimed would be significantly reduced.
Conclusion
Thus to conclude the following points can be addressed:
 Alice’s actions were negligent due to which the Marcos sustained injuries
 Marcos has the right to claim damages from Alice; however the amount claimed would
be reduced due to contributory negligence on his part as well.

9COMMERCIAL LAW
Part B
a) Ethical approach of Alice in this scenario-
It is to be mentioned that Alice used the Utilitarian Approach while taking the decision to
proceed with the trip in spite of being aware that Marcos had sustained severe injuries. Alice
could have steered the vessel in the direction of the harbor however, she decided to carry on with
the trip as the basic purpose of the trip was to view whales and every client on the vessel had
paid to watch whales. It can be said that she had used the Utilitarian concept because she gave
more importance to the whale watching experience which was supposed to create the greatest
benefit for most of the clients and had neglected the seriousness of injury sustained by Marcos.
b) Factors and tensions that should have been balanced in this situation
In this scenario the primary factor that had to be given importance was the seriousness of the
injury sustained by Marcos. The secondary factor to be taken into consideration in this scenario
is the demand of the other clients to view whales. However, this factor should be considered to
be secondary as catching a glimpse of a whale or viewing is in no one’s control and such whale
viewing experience is a recreational activity which should be given less priority than severe
health issues of clients.
c) Ethical approaches to be utilized by me had I been in Alice’s position
In my opinion, The Virtue Approach would have been utilized by me at the time of decision
making in order to determine whether to steer the vessel in the direction of the harbor or carrying
on with the trip. According to me it can be stated that this approach would be the most suitable
one to be utilized in this scenario as it focuses on the values of humanity, compassion and
prudence. It can be mentioned that although the Utilitarian approach focuses more on the overall

10COMMERCIAL LAW
benefit or good of the most number of people, the basic and primary needs of an individual is not
to be neglected. According to me it is inhuman to carry on any recreational activity on the
demands of the majority of the people, while one person is in tremendous pain and suffering.
Exhibiting such behavior would highlight the uncompassionate nature of such person. It is to be
mentioned that in the given scenario, I would have sternly taken the decision to rush to the
harbor immediately after the injury sustained by Marcos and would have neglected the
unreasonable demands of the clients to show whales. According to me making a decision in a
crisis situation requires identifying and evaluating the seriousness of the ethical issues and acting
in way which would comply to high moral standards is essential. In this case the quest to spot
whales is far less significant and paying attention to the needs of an injured person, thus the
former should be given far more priority.

11COMMERCIAL LAW
Bibliography
Barnett v Chelsea & Kensington Hospital [1969]
Caparo Industries pIc v Dickman [1990] 2 AC 605
Capps v Miller [1989] 1 WLR 839
Davies v Swan Motor co [1949] 2 KB 291
Donoghue vs Stevenson [1932] AC 562
Grant v Australian Knitting Mills. PC 21 OCT 1935
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Murphy v Brentwood DC [1991] AC 398
Railways v Halley [1978] 20 ALR 409
The Wagon Mound no 1 [1961] AC 388
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.
Fulbrook, J., 2017. Outdoor activities, negligence and the law. Routledge.
Richards, B., 2015. Negligence and tort law: the corruption myth. LexisNexis Butterworths.