Theories of the Common Law of Torts Assignment

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Running head: TORT
Law of Torts
Name of the Student
Name of the University
Author Note

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1TORT
Issue
The issue is to advise Bob on his legal position in terms of his liability to the people
injured in the hike, which includes Greg, Mary and Frances.
Law
Essentials of Negligence
The tort of negligence is referred to the causation of damage to property, injury to
person or economic loss by way of carelessness. The three essentials of to prove the tort of
negligence are: a) the tortfeasor/defendant duty of care to the plaintiff; b) the defendant
breached is duty of care; c) such breach of duty has caused injury or damage to the plaintiff.
Another element which is vital for the determination of the negligence of the defendant is the
factor of remoteness (Harris, 2013, pp 24-32).
The plaintiff must prove that the defendant owed him a duty of care due to the degree
of relationship or proximity shared by them as held in the case of Donoghue v Stevenson
[1932] AC 562. In order to understand the extent of the liability, the case of Ultramares Corp
v Touche, Niven & Co 174 NE 441 (1931) could be referred to where the court decided that
the error of the accounts shall affect anyone who would read the audited reports. The
foreseeability of the harm was discussed with reference to the case of Perre v Apand (1999)
CLR 180. (Harris, 2013, p. 26).
When the defendant fails to take ‘reasonable care' of the plaintiff in the course of the
duty owed, the defendant breaches his duty of care. It is presumed that a ‘reasonable person'
would take reasonable care due to his duty of care towards people dependent on him, in all
circumstances, having an average intelligence.
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2TORT
The third essential elements to prove an act of negligence is the evidence of injury or
loss suffered by the plaintiff due to the act or omission (breach of duty of care) of the
defendant. It is the liability of the plaintiff to establish that he would not has suffered the
injury if the defendant had not breached his duty of care, as held in the 'but for' test in the
case of Cork v Kirby Maclean [1952] 2 ALL ER 402. The plaintiff must calculate the
aggregate amount and types of losses for which he is suing the defendant, which may include
pecuniary and non-pecuniary losses (Harris, 2013, p. 34).
Lastly, the element of remoteness needs to be established by the plaintiff showing
that the injury suffered by him was not too remote to be foreseen by the defendant, as
discussed in the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd
[1961] AC 388 (Harris, 2013, p. 32).
Rule of Defence
According to the common law of tort and Section 5R the Civil liability Act 2002
(NSW), a plaintiff has a duty of care towards himself, which obliges him to take reasonable
care in order to avoid injury for himself. Therefore, defendant could defend himself by the
defence of ‘contributory negligence' where he needs to establish that the plaintiff had
contributed to the negligence, therefore sharing a burden of 'carelessness’ and 'breach of duty
of care’ along with the defendant, as in the case of Mak Woon King v Wong Chiu [2000] 2
HKLRD 295.
In such situation, the defendant is still held liable for causing injury to the plaintiff;
however, the amount of compensation/damages that he is liable to pay is reduced by the
court. The amount of damages payable is determined as per the percentage of responsibility
held by the defendant and also by the plaintiff (Harris, 2013, p. 36).
Application
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3TORT
Bob Butlin, being a professional hike operator had duty of care towards the hiking
groups who signed up for hike with him. He had the duty to maintain the hiking trails by
frequently moving the boulders off the track, which he certainly did not do. Even though
there were warning signs for the hikers to wear hiking boots, Bob still held a duty of care
towards the hikers for being the official hike operator and owner of the hiking trail. A
proximate relationship could be established between bob and the hikers who joined the hike
depending on Bob’s expertise. Bob’s failure to clear the boulders and run a thorough
inspection of the trail, indicates that there is a breach of duty of care from Bob's end.
Had Bob run a thorough inspection of the trail, he would have seen the hole at the trail
and took care of it, but for his negligence, Greg fell into the hole and broke his leg, even
though he was warned. Similarly, in Mary's case, although she wore sandals instead of hiking
boots, Bob’s negligence to remove boulder from the trail caused injury to Mary. Therefore, it
could be established that Bob's negligence is the cause for the injuries suffered by Greg and
Mary.
However, it was unforeseeable that Frances would suffer from a post-traumatic shock
due to the injury suffered by her daughter, Mary. Therefore, Bob cannot be held responsible
for the losses suffered by Frances.
In Bob’s defence, the defence of contributory negligence could be cited where he
could establish that the injury suffered by Greg and Mary were not a direct consequence of
his breach of duty to inspect the trail and remove the boulders. Greg was warned not to go to
the wrong trail but he defied Bob’s instruction. Similarly, Mary wore a sandal instead of
wearing a hiking boot as suggested in the sign. Therefore, it could be established that both of
them contributed to their injury, thereby reducing the amount of damages that Bob would be
asked to pay as a compensation to the injury suffered by Greg and Mary.

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4TORT
Conclusion
Therefore, Bob would be held liable for breaching his duty of care towards Greg and
Mary and not Frances. However, he would be able to take the defence of contributory
negligence to lower the damages amount by establishing the acts of negligence of Greg and
Mary.
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5TORT
References
Civil Liability Act 2002 (NSW)
Cork v Kirby Maclean [1952] 2 ALL ER 402
Donoghue v Stevenson [1932] AC 562
Harris, B. (2013). Business and Corporations Law. School of Accounting and Finance
Faculty of Business, Justice and Behavioural Studies. Charles Sturt University.
Mak Woon King v Wong Chiu [2000] 2 HKLRD 295
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388
Perre v Apand (1999) CLR 180
Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931)
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