Assessment of Contributory Negligence in Injury Claims

The case involves Georgina who suffered an injury after falling on a rock while setting up her tent at night. The defendants, in admitting that the rock was visible during the day but not at night, argue that Georgina should have been more careful and taken reasonable precautions to avoid the injury. They also point out that there was no defined path to the toilet facilities provided by them, making users of the premises more vulnerable to risk. Additionally, they claim that Georgina's intoxication state would have further impaired her ability to take reasonable actions in the situation. As a result, the defendants argue that Georgina contributed to her own injury and should not receive full compensation.

Running head: TORT LAW
Tort Laws
Name of the student
Name of the university
Author note

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Answer 1
The area of law which has been identified in this scenario under which a Georgina can make a
claim is the law of torts. Under the law of tort topics areas like defamation, negligence and
nuisance are covered. In this particular case the specific area of tort law under which Georgina
can make a claim is the law relating to negligence. This area of law is dealt with the provisions
of common law and also statutory provisions provided through various civil liability acts of the
respective states. The concept of negligence came into the context of the legal world through the
must referred case of Donoghoue v Stevenson1. The case introduced the neighbor principle
which lays foundation to the duty of care. As a good neighbor has the duty to make sure that no
harm or injury or any kind of damage is caused to their neighbors as a result of their actions in
the same way a person has a duty of care for another person who can suffer injury as a result of
their actions. The famous concept of the duty of care is the initial requirement to make a claim
for negligence. The duty of care gives rise to the concept of occupiers’ liability as used in the
case of Novakovic v Stekovic2. According to the case the occupier of a premise has a duty of
care towards those using the premises. Therefore as Georgina was using the space occupied by
the defendants Caravan Park and Mr Preston, they owe a duty of care towards her.
In the case of Vaughan v Menlove3 the court used another requirement to establish negligence.
This is related to not complying with the duty of care and thus violating it. In this case a test
known as the objective test had been used by the court to answer whether a duty has been
violated or not. As per the principles of the case the duty is not complied with in case a prudent
individual in similar situation had been more cautious as compared to the defendant. In the given
1 1932 AC 522
2 [2012] NSWCA 54
3 (1837) 3 Bing. N.C. 467

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case Georgina has to show that the defendants were not as cautious as a reasonable person as a
reasonable person would have made sure that no rock is present in their premises which may
cause harm to the users.
The final element is required to raise a claim for negligence is causation. In the case of Barnett v
Chelsea & Kensington Hospital4 a test known as the “but for” test had been used by the court to
answer causation. As per the concept of causation the injury occurred to the plaintiff has to be a
result of the duty’s violation. Thus as per the “but for” test if the injury would have occurred
although the duty was not violated than it would not establish negligence. In the given case if
there would have been no rock than no injury would have been caused to Georgina. Hence she
has can make a claim under negligence under common law and under the civil liability acts.
Answer 2
This section of the paper will set out the breaches which have been made by the defendant which
the plaintiff could rely upon making a claim for negligence. As per the civil liability acts of the
states a person is negligent and have breached the duty of care if the risk of injury could be
foreseen which means that the risk was known or is deemed to be known to that person.
According the facts of the case is evident that the defendants knew that presence of the rock in
the premises which is not easily seen at night can cause harm to any user of the premises.
Moreover the rules provide that the risk must not be insignificant, that was not the case
according to the facts of the scenario as any person can predict a large rock can cause significant
injury a person. In addition the rules state that if a reasonable person would have been more
caution then than the duty of care has been breached. In this case it was evident that such
4 [1969] 1 QB 428

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provisions have been breached by the defendant as a reasonable person would have informed
about the presence of the rock to the users of the premises through a sign.
In addition the provisions of the legislations provided the rule relating to probability for
determining the actions of a reasonable person, the seriousness of the harm, the burden of taking
precautions for avoiding the risk of injury and social utility associated with the action creating
the harm. In this case the defendants know that it is probable that a person would get injured at
night without seeing the rock. The harm arising out of such situation is also very significant,
there burden of taking precaution was mainly on the defendants and the action of the plaintiff
was for social utility thus the defendants have breached these provisions.
The principles of causation have also been breached by the defendants as the injury was caused
necessarily because the defendants were negligent in their actions. Thus the principles of factual
causation have also been violated by the defendants as Georgina would not have suffered the
injury if proper measures were taken by the defendants.
Answer 3
There is little doubt over the fact that the defendants would not admit the claim of negligence
made by Georgina in relation to the injury caused to them. However in relation to the claim they
may admit certain part of the evidence provided by Georgina.
The first photograph which was taken by the daughter of the halls depicted the prominent
presence of a dark rock which was positioned between two posts one of which was Georgina’s
tent and the other in front of the vehicle owned by the halls. In the second photo where the light

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was not sufficient the rock was barely visible to the naked eye. The defendant way admit that the
rock was visible in the morning and not at night so Georgina must have known about the
existence of the rock when it was visible and thus had been more careful in relation to the injury
suffered by her. They would not accept the clim made by Georgina which stated that she saw the
two posts but not the rock and they may claim that any person having healthy eyesight would
have seen it.
The further have to accept that there was no defined path as provided by the facts of the case to
go to the toilet facilities provided by them from the tents. An absence of a path would suggest
that it would make the users of the premises more vulnerable to the risk of getting Injured. They
also cannot deny to the fact and have to admit that there was a big rock present between the tents
with no signpost to suggest that the people have to be cautious at night there. The defendants
may also admit the fact that the plaintiff did not take the same path coming back from the toilet
as she was injured by taking a different path. They may also have to admit to the fact that
Georgina had fallen because of little ledge below the rock as a black area was shown their in the
photograph depicting the presence of such ledge.
Answer 4
When it comes to negligence both common law and the civil liability act provided certain
defenses which can be utilized by the defendants against a plaintiff to defeat or reduce the claim
made by them.
Common law and statutory law provides the concept of contributory negligence. In the case of
Jackson v McDonald's Australia Ltd5 it was provided by the judges that of a person was not
5 [2014] NSWCA 162

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careful in relation to sustaining the harm which has been caused to them they might not be able
to make a full claim of negligence. In addition the statutory provisions of the civil liabilities acts
provides that the claim made by a person in relation to negligence can be defeated totally if it is
found that they were significantly liable for the harm caused to them.
Moreover the Civil Liability Act 2002 (NSW) through its part 6 provides provisions related to
intoxicated persons in case of negligence. Section 48 provides that a person is said to be
intoxicated if they are under the influence of drug or alcohol for any purpose6. As provided by
section 50 of the Act a person will not recover any damages were it is provided by the defendant
that due to the state of intoxication the person ability to use reasonable care towards a situation is
impaired7. However if the court finds out that an injury would have occurred even of the person
was not intoxicated that the plaintiff is entitled to receive a part of the claim made by them
because of the failure to exercise reasonable care by the defendants.
In the given situation the first photo showed that the rock which caused the injury was visible
during day light along with the little ledge below the rock. In such situation it can be claimed by
the defendants that the Georgina as a reasonable person when was present during day time and
was setting up the camp should have been aware about the fact that a large rock along with its
little ledges are present in front of her tent.
When at night there was not provided path to avail the toilet facilities as a reasonable person she
should have used the dame path to come back which she used whole going to avoid any injury
because of the darkness. If she would have taken reasonable care than the injury would have not
6 Civil Liability Act 2002 (NSW) at Section 48
7 Civil Liability Act 2002 (NSW) at Section 50

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been caused to she and she would have avoided the rock. Thus according to the provisions of
contributory negligence her claim can be reduced by the courts
In addition it has been provided by the facts of the case that Georgina was drinking along with
her friends the night the injury took place. The intoxication state would have further impaired her
ability to take reasonable actions in the situation and the injury may have been avoided if she
was not intoxicated. Therefore this can also be claimed as a defense by the defendants against
Georgina.
In the given situation to find out the actual damages to be paid to Georgina the court will
determine the extent of contribution made by Georgina herself towards the injury sustained by
her.

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Bibliography
Novakovic v Stekovic [2012] NSWCA 54
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Civil Liability Act 2002 (NSW)
Jackson v McDonald's Australia Ltd [2014] NSWCA 162