Negligence Law and Civil Liability

This assignment delves into the complexities of negligence law, exploring its essential elements, relevant case law, and the impact of the Civil Liability Act 2002 in New South Wales. Students are expected to demonstrate a thorough understanding of these concepts by analyzing legal precedents and applying them to hypothetical scenarios.

TORTS PROBLEM
SOLVING

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................3
ISSUE..............................................................................................................................................3
RULE...............................................................................................................................................3
ANALYSIS......................................................................................................................................7
CONCLUSION................................................................................................................................8
REFERENCES................................................................................................................................9

INTRODUCTION
A new shopping centre was opened in the Gold Coast suburb of Robina, Queensland,
named “The Pantry”. It was owned and operated by Westlands Pty Ltd. This new shopping mall
includes two major supermarkets, a new food court, a number of eateries and a shared dining
area. This mall also has fire safety measures as well. Present report will dicuss the
ISSUE
The main issues which has arised in mall “The Pantry” was that safety measures were not
monitored properly bt the authority. There were two double doors, which were fire doors, in the
corridor in which it was writtern in bold letter- Fire Safety Door, Do Not Obstruct and Do Not
Keep Open. Marceau, a tenant of ‘The Pantry’, was concerned that the difficulties in accessing‘
The Pantry’ via the fire doors were affecting the business of his eatery ‘OuiOui’. In order to
increase the sales of his eatery, he opened one gate or wedge of fire safety door. He noticed that
it helped in increasing its business, so he opened the other wedges of the door as well.
This activity was the main reason of why “The Pantry” caught fire to an extreme level,
due to which so many people got suffered, such as, Ronaldo, Zoe, etc. Security guard has also
seen him doing this but he as well did not tell to anybody about this, which lead to a huge
accident and affected so many lives as well. All these accidents happened due to poor safety
measures in the mall and negligence of proper monitoting of all the activities that is being
performed in “The Pantry” by the employees. Proper implication of theleas and regulation in the
mall was incorporated by the owner as well which can also be a huge issue behind this accident.
All the fire measures should pass the safety standards within Australia Standards.
RULE
In this case Tort Law1 is applicable as it is a part of Negligence Tort.
In simple words Tort is said as Civil Wrong, wherein any person who had suffered loss or harm
that results in legal liability will be said as tortuous act. Torts can be said as it is wrongdoings
that had been done by one party against another party. There are three types of Torts-:
1. Intentional Tort-: In this category harm is committed intentionally by the other party.
These type of Torts includes-: Assault, Fraud, trespassing, false imprisonment etc.
1 Bermingham, V., & Brennan, C. (2018). Tort law directions. Oxford University Press.

2. Negligence Tort-: In this one party fails in taking care of some prudent activities which
results in injury to other party. The following can be elements of negligence tort-:
1. Duty-: It is the duty of accused to take reasonable care of plaintiff
2. Breach-: Duty had been breached by a culpable omission by defendant.
3. Damages-: Plaintiff suffers injury because of omission.
4. Causation-: Injury had been done because of consequence of the accused act or
omission.
3. Strict Liability Torts- These are areas where law imposes liability even if accused is not
in fault
The Tort Law had brought for three functions2-:
1. For Providing Compensation for losses suffered,
2. Deterrence,
3. For spreading loss that is suffered by individual's for a wider group of society.
Tort can't be said as crime because crime is wrong doing which as it breach of duty that
had been imposed by law that are owed to public.
The Fundamental principles for determination of negligence3 are-:
1. Reasonable Forseeability-: The Main problem for plaintiff is for establishing duty of care
and the harm that had been created by negligence. There are two issues when it comes to
reasonable forseeability, they are who is the person whom I owe the duty and second one
is that whether the duty that had been imposed in given situation.
Contributory Negligence
This was initially a complete defense technique where accused or defendant proves that
this negligence is not caused by him personally but that too with contribution of plaintiff is also
there. Even the contribution is minor then also verdict will be in favor of defendant. The
following are elements of contributory negligence-:
1. There should be fault of plaintiffs
2. The plaintiff also contributed for the damage occurred
3. Damages that had been suffered by plaintiffs are within the class of risk
2 Cornford, T. (2016). Towards a public law of tort. Routledge.
3 Fulbrook, J. (2017). Outdoor activities, negligence and the law. Routledge.

The Low of Tort is governed by Civil Liability Act 2002 (NSW).This law had been
brought for creation of liability of negligence4. The Judicial remedies and limitations of actions
are provided by this act. The Court determines different head of damages for calculation and
awarding of damages5. The Five Conventional head of damages by negligence tort are-:
1. Loss of Earning Capacity
2. Loss of Amenity
3. Loss of Expectation if Life
4. Hospital, medical and care expenses
5. Pain and Suffering
Economic Losses are losses that are related to money. It consists of Hospital, medical and care
expenses and Loss of Earning Capacity,
Non Economic Losses-: They are not related to money. This includes Loss of Amenity,
Expectation of Life and Pain and Suffering and Losses.
Past Losses are losses that are in between court proceedings and injuries occurred that can be
economic or non economic.
Future Losses are that losses which are occurred after court hearing started.
Special Damages-: These are damages that are suffered because of negligence act of defendants.
This damages mostly considers past economic losses.
General Damages-: These are damages that are mostly not in monetary terms and it consists of
plaintiffs future and non economic and economic losses.
4 Hafeez-Baig, M. J. & English, J. (2017). Re-thinking the Requirement for a"
Recognisable Psychiatric Illness" in the Law of Negligence. Tort Law Review. 25(2). 92-99
5 Jones, H., & Benson, C. (2016). Publishing law. Routledge

Economic Losses
Hospital Medical Care and Expenses6
1. Court awards damages for all expenses that are reasonably incurred for treatment of
plaintiffs
2. While determining that whether any expenses are reasonable they weigh the cost against
the injury.
3. Compensation will be provided in Gratuitous manner by court.
4. There is no concern of court after they have awarded damages.
Losses in Earning Capacity7
1. Court Uses Net income of plaintiffs for calculation of damages for loss of earning
2. they take into account expenses that are necessarily required for earning income
3. If hospital damages are awarded by court at that time loss of earning capacity is not
awarded to them as plaintiff may get extra compensation.
6 Kelly, K., Schwartz, V. E., & Partlett, D. F., (2015). Prosser, Wade, Schwartz, Kelly, and
Partlett's Torts, Cases and Materials. Foundation Press.
7 Elements of Negligence, (2018)

Non Economic Losses
1. No damages may be awarded unless the severity of non economic loss is at least 15% of
most extreme case.
2. The Maximum amount of damages for non economic losses will not be more than
$350000 and will also be awarded in most of extreme case.
3. If any severity of non economic losses is equal or greater than 15%, the amount that is
determined be rounded of to nearest $500.
ANALYSIS
From the above rule it can be stated that this is the case of clear negligence of the
employees and owners8. As per this case, section 5 of Civil Liability Act 2002 should be applied,
which states that any kind of harm which includes personal injury or death, damage to the
property or economic loss. According to this case, Marceau and Jack will be charged against
section 5 of Civil Liability Act 2002 under the cause of negligence.9
According to the tort of negligence, there are various elements which has to be analysed
properly, for example, all the employees who were working in the mall should understand their
duties and responsibilities effectively. In the given case, Jack who was the security officer
employed by Robina Security Services in the mall. He noticed that both the door was opened by
Marceau for his own purpose, but he did not close the doors or report the open doors to
Westlands’ management or Robina Security Services even. This show that it is a clearly a sign of
negligence by Jack as well.
Apart from this, the design of the mall was also not according to the Australian Standards
which is required for the safety measures. Negligent torts are not deliberate actions, but instead
present when an individual or entity fails to act as a reasonable person to someone whom he or
she owes a duty to. The negligent action found in this particular tort leads to a personal injury or
monetary damages. There are different relationships between the parties in the mall, for example,
Westlands and Ronaldo which is of an Employer and Employee relationship. According to this,
when a person performs work or services under certain conditions in return for remuneration. It
is through the employment relationship.
8 Henderson Jr, J. A., (2017). Learned Hand's Paradox: An Essay on Custom in Negligence
Law. Cal. L. Rev., 105, 165.
9 CIVIL LIABILITY ACT 2002 - SECT 5, (2018).

There are various elements which comes under this legligence law, for example,
 Duty: It is basically a duty of accused to take reasonable care of plaintiff. In this case,
security officer Jack has not performed his duty perfectly which lead to this tort. If he
informed the owner about the open doors of the fire exit, then there will be a chance that
it could be managed effectively10. In this case, both the securty man Jack and Marceau
ows care of duty which they have nor performed well. They will be charged against Civil
Liability Act 2002 under the cause of negligence.
 Breach: Duty had been breached by a culpable omission by defendant. There are lot of
evidence from which it can be concluded that there are so many failures while performing
their responsibilities. For example, if Marceau understood the importance of those fire
doors than situation would not have been happed. For his personal sake and profit he
opened both gates of the fire exit which was according to Australian Standards for fire
measures. Both Jack and Marceau has breached tehri duty which ha sled to tort of
negligence. Unders section 5 of Civil Liability Act 2002 they are charged aginst this
activity.
 Damages: Due to this tort, mall “The Pantry” has suffered a lot of damages. The fire
quickly spread through all over the mall. The smoke from ‘The Pantry’ quickly spread
into the shopping mall at much faster rate than it would have if they kept the fire doors in
‘The Pantry’ closed as required by the fire regulations of Australia11.
 Causation: Injury had been done because of consequence of the accused act or omission.
All the injuries which has happened during the tort has to be considered very varefully by
the owner of the mall. For example, Ronaldo and Zoe are liable to get compensation of
their medical expenses and bills.
CONCLUSION
As the above case states that the safety measures were not followed by mall authority
which caught fire in mall and there were problems in accessing out of mall in which many
suffered problems and majority Ronaldo and Zoe. So, this act was a negligence tort by the
10 Levine, L. C., Vetri, D., Vogel, J., & Gassama, I. J., (2016). Tort law and practice.
Carolina Academic Press.
11 Luntz, H. & et.al, (2017). Torts: cases and commentary. LexisNexis Butterworths.

authority of mall. As even Zoe had noticed and even forwarded mail to the authority of mall
they had not taken any action to it.
Zoe got severely burnt while she was reviewing foods so she must get compensation of
economic and non economic losses under Civil Liability Act 200212. She must get compensation
of her hospital and medical care expenses which will be incurred by them.
Ronaldo who is former soccer player was working as part-time employee in Westland
mall, collapsed while going out of the mall so he must also get compensation for hospital and
medical care and also loss of earning that had been taken place because of the same as he may
not continue job for some months, so he must be paid accordingly to the calculation that ahd
been provided by Civil Liability Act 200213.
12 Stickley, A. P. (2016). Australian torts law. LexisNexis Butterworths.
13 Civil Liability Act 2002, (2018)

REFERENCES
Books and Journals
Bermingham, V., & Brennan, C. (2018). Tort law directions. Oxford University Press.
Cornford, T. (2016). Towards a public law of tort. Routledge.
Fulbrook, J. (2017). Outdoor activities, negligence and the law. Routledge.
Hafeez-Baig, M. J. & English, J. (2017). Re-thinking the Requirement for a" Recognisable
Psychiatric Illness" in the Law of Negligence. Tort Law Review. 25(2). 92-99
Henderson Jr, J. A., (2017). Learned Hand's Paradox: An Essay on Custom in Negligence Law.
Cal. L. Rev., 105, 165.
Jones, H., & Benson, C. (2016). Publishing law. Routledge.
Kelly, K., Schwartz, V. E., & Partlett, D. F., (2015). Prosser, Wade, Schwartz, Kelly, and
Partlett's Torts, Cases and Materials. Foundation Press.
Levine, L. C., Vetri, D., Vogel, J., & Gassama, I. J., (2016). Tort law and practice. Carolina
Academic Press.
Luntz, H. & et.al, (2017). Torts: cases and commentary. LexisNexis Butterworths.
Stickley, A. P. (2016). Australian torts law. LexisNexis Butterworths.
Wright, J. (2017). Tort law and human rights. Bloomsbury Publishing.
Online
Civil Liability Act 2002. 2018. [Online]. Available Through
<https://www.legislation.nsw.gov.au/~/view/act/2002/22>
Elements of Negligence .2018. [Online]. Available Through
<https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html>
CIVIL LIABILITY ACT 2002 - SECT 5. 2018. [Online]. Available Through:
<http://www5.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s5.html>