Tort: Negligence and Breach of Duty of Care

This article discusses the case of Rebecca v SMPS involving negligence and breach of duty of care. It explores the relevant laws, including Tort Law and the Civil Liability Act 1936, and analyzes the disputed legal issue. The conclusion highlights the liability of SMPS and the negligence in failing to provide supervision for children playing flying fox.

Tort

Contents
Introduction......................................................................................................................................1
Disputed Legal Issue........................................................................................................................1
Conclusion.......................................................................................................................................2
REFERENCES................................................................................................................................3

Introduction
In the present case, the Plaintiff is Rebecca and Saint Mary’s Primary School (‘SMPS’) is
Defendant. Rebecca, the Plaintiff has suffered injury due to negligence of SMPS. SMPS, the
Defendant does not fulfil the supervisory responsibilities against children due to which Rebecca
was injured while playing flying fox.
Rebecca, the Plaintiff can bring in action against SMPS, the Defendant in negligence. SMPS
owed Rebecca a duty of care as the Pupil of their School. The risk of harm in this case was
foreseeable as children were left to play flying fox without any supervision and the harm which
has been caused to Rebecca due to negligence of SMPS is not insignificance. In this case of
Rebecca v SMPS, there is Breach, Duty and Causation that are associated with the negligence
act. This breach of duty by SMPS has caused Rebecca a significant harm and injury which has
been brought into action of Plaintiff.
Disputed Legal Issue
The law of Tort is the major legislation which is relevant in the case of Rebecca v SMPS.
Tort Law in Australia includes Torts which are the common law against the civil wrong doings.
The specific Tort which is related with the present case is negligence and this Tort is most
commonly litigated forms of the Tort Law in Australia. Rebecca, the Plaintiff can acquire legal
remedy under this law against the wrong doing (negligence) by SMPS. This law of Torts in
Australia has been derived from the legal system of United Kingdom and in modern times the
jurisdiction of Australia is fully independent1. The authority which is relevant in this case is High
Court of Australia which has the final say in the case of common law or in this present case of
Rebeca V SMPS. The litigations and elements of various torts includes invasion of privacy,
defamation and wrongful doing. Among these, the one which is relevant in this case is wrongful
doing which has been caused by the breach of duty of care and negligence2.
Besides law of Tort, another law which is relevant to the present case is the Civil
Liability Act 1936. This act is applicable in Australia and is used to various elements including
1 (Luntz and et.al., 2017).
2 (Fhloinn, 2017)
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negligence and children. This legislation is used in situations where one person owes another a
duty of care and fails to do so that results into damage or harm to another person or property3
In order to analyse the disputed legal issue, the most important aspect is to identify the
law governing the elements of cause of action. In this case of Rebecca v SMPS, the cause of
action includes three aspect which are Duty, Breach and Causation. The law governing, these
three aspects is the common law. For a statutory action, a case law will be used for the
interpretation of statutory requirement. The case law used in this case is Roman Catholic Church
Trustees v Hadba (2005) 221 CLR 1614.
This case was in hands of higher court jurisdiction; the Defendant in this case argued that
they followed all their duties of care which included Supervision and regular check of the flying
fox equipment. After analysing both the parties, various facts were outlined which included that
the Plaintiff was a child who was grabbed by other children by her legs and children can be this
mischievous when they do are in sense that no adult is present for supervision. By this, high
court highlighted that the Defendant in this case had a standard of care which they breached and
resulted into negligence due to which an eight-year-old child injured herself when pulled from
flying fox. This case even highlighted that it was obvious to maintain supervision and act
reasonably.
Conclusion
By considering all relevant legislation and case laws, it has been concluded that Rebecca,
the Plaintiff will likely to be able to establish all elements of negligence against SMPS, the
Defendant. The liability of SMPS may be limited but this institution is concluded to be engaged
in the act of negligence. SMPS contributed in the harm and injury which Rebecca suffered as
SMPS failed to dedicate a teacher that can supervise children playing flying fox due to which a
child was injured due to the act of negligence and breach of duty of care. Also, SMPS, the
defendant did not has the specific rules and procedures for playing the flying fox otherwise, the
accident would not have been likely to happen.
3 (Barrett, 2019)
4 (Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony's Primary
School) v Hadba [2005] HCA 31, 2020)
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REFERENCES
Books and Journals
Barrett, J., 2019. Damages: For loss of consortium and servitium. Precedent (Sydney, NSW),
(151). p.34.
Fhloinn, D.N., 2017. Liability in negligence for building defects in Ireland, England and
Australia. International Journal of Law in the Built Environment.
Luntz, H. and et.al., 2017. Torts: cases and commentary. LexisNexis Butterworths.
Online
Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St
Anthony's Primary School) v Hadba [2005] HCA 31. 2020. [Online]. Available through:
<http://eresources.hcourt.gov.au/showCase/2005/HCA/31>
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