Law 10: Detailed Analysis of Negligence in the Marcos vs. Alice Case

This report analyzes a negligence case involving Marcos and Alice, focusing on the application of negligence law. The case examines whether Alice, the owner of a whale watching business, was negligent in causing injury to Marcos. The report identifies the elements of negligence, including duty of care, breach of duty, causation, and damages. It discusses the legal principles established in cases like Donoghue v Stevenson and Chapman v Hearse to determine Alice's liability. The analysis considers contributory negligence, as Marcos failed to adhere to safety instructions. Furthermore, the report explores the ethical decision-making process of Alice, evaluating her actions through an ethical framework. Finally, it suggests a deontological approach, emphasizing Alice's duty to prioritize customer safety and provide adequate assistance in case of injury. The report concludes that Marcos has a claim against Alice, although the damages may be reduced due to contributory negligence.

Running Head: Law 1
Law

Law 2
Part A
Issue:
Whether it is possible for Marcos to file case against the Alice under law of Negligence?
Law:
Negligence can be understood as failure of person to take reasonable care for the purpose of
avoiding any action which can result in injury or loss to any other person. For establishing the
case under negligence, following elements must be present in the case:
 Plaintiff must provide evidence that defendant owns duty to take care towards the
plaintiff.
 Defendant fails to take reasonable care of the plaintiff. In other words, action of the
defendant fails to match the standard of care which would be complying by any
reasonable person in the similar situations.
 Loss or injury is suffered by the plaintiff.
 Injury or loss caused because of the breach of duty by the defendant (ALRC, 2018).
Common law determines the duty of care in number of limited relationships such as
relationship of innkeeper and guests, carrier and passenger, doctor and patient, occupier of land
and visitor. For duty of care to be exists, there must be some relationship between the plaintiff
and the defendant. It is necessary to establish that plaintiff and defendant share relationship for
the purpose of filing claim under negligence (Lawvision,n.d.; Liability Act, 2008). Duty of care
can be understood through case law Donoghue v Stevenson 1932 AC 562. In this case, two
ladies that was Mrs. Donoghue (plaintiff) and her friend went in café. Friend of Mrs. Donoghue

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purchased bottle of ginger-beer for Mrs. Donoghue. Bottle of ginger-beer was sealed and it was
not possible to inspect the content of the bottle. Plaintiff drank a glass of the ginger-beer and
when she poured second glass of the beer a decomposed snail fell from the bottle of the ginger
beer. Because of the snail in the bottle, Mrs. Donoghue suffered from gastroenteritis and nervous
shock. In this, plaintiff file suit against the manufacturer of the ginger beer bottle under
negligence. In this case, relationship exists, as manufacturer of the beer sold bottle to the
shopkeeper, that means contract exists between the parties and remedies under law were
available for breach of contractual terms. Shopkeeper sold the bottle of beer to the friend of
plaintiff that means contract exists between the parties. Later, friend made gift of the beer bottle
to plaintiff. In this contract does not exist between the parties that mean no remedies are
available under law of contract. House of Lords, London decide this case and main issue decided
by Court was whether plaintiff can took action against the manufacturer of beer?
In this case, House of Lords decided that the manufacturer of the products owns the duty of
care towards the ultimate consumers of the product while manufacturing such product, and this is
because product manufactured by the manufacturer for the ultimate consumption of the
consumers. General principle was stated by the lord Atkin in this case, and in this principle he
considered liability in context of tort of negligence. In this case, Judge made the law that the
person was obligated to love their neighbor and must not injure their neighbor. An individual
was under obligation to take reasonable care for avoiding any act or omissions which can be
reasonable foresee that cause injury to the neighbor. In this context, Court also defines the term
neighbor in restricted sense. Neighbor was the people who were closely or directly affected by
the act of person.

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Breach of duty of care- it is also known as standard of care and it arises only in such situation
under which plaintiff owns duty of care towards the defendant. For the purpose of determining
the breach, following elements must be taken into account by the Court:
 Foreseeability of risk- as per this, if degree of the risk is higher than defendant must make
greater efforts to avoid such risk.
 Reasonableness of the actions of the defendant- this scenario includes various elements
such as costa and burden imposed because of the removal of risk, and the social and
public usage of the action of the defendant (Legal Services Commission, n.d.).
Court also consider the small risk of harm reasonable foreseeable by the defendant. This can
be understood through case law Chapman v Hearse (1961) 106 CLR 112. In this case, Chapman
(defendant) hit the other vehicle from behind because of his negligence, and because of this door
of Chapman’s vehicle opened and fell on the road. After some time, Dr. Cherry passed through
the similar way and stopped for assisting the Chapman. At that time, conditions in context of
whether were very poor and there was no visibility. While providing medical help to Chapman,
dr. cherry was hit and killed by the vehicle driven by Hearse. In this case, court stated that
Chapman was negligent for controlling and managing the vehicle, and in this Chapman was also
held liable because of his negligence this accident was occurred. In other words, because of his
negligent driving this situation was occurred.
Appeal was made by Chapman to the high Court on the ground that he does not own any
duty of care towards Dr. Chapman because the events occurred were not reasonable foreseeable.
For this purpose, High Court stated, important element to be considered was whether it was
possible for reasonable man to foresee, as the result of such a collision, presence occurred on the

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road, of those persons who were fulfilling their social and moral duty by providing help to
injured person. Dr. Cherry also had moral responsibility to stop his car and help the Chapman.
Therefore, it was not important to consider the probability of particular accident and particular
damage. It is enough, that accident fall under the class which only determines the reasonable and
probable consequences of the wrong actions. Negligence committed by Chapman becomes the
reason of death of Dr. Cherry and fall under the category of reasonable foreseeability. Appeal
made by Chapman was dismissed by the Court. Many times Court only consider the risk, and if
such risk was foreseeable, as considered so small as it does not result in breach of duty of care.
Contributory negligence- contributory negligence resulted when person who suffer loss or
injury themselves contributed in the reason because of which such loss or injury occurred. In
case plaintiff does not take reasonable care for their own safety then there is the case of
contributory negligence. In case of contributory negligence, amount of damages claimed by
plaintiff is reduced as per the contribution made by plaintiff in the negligence (Liability Act,
2008).
Application:
Wonderful Whale Watching business is operated by Alice in Mooloolaba, and for this
purpose Alice used 10-metre long boat. Model of the boat is old, and because of this Alice made
some renovation to the floor of the boat. High quality marine carpet is purchased by Alice, but
because of the high cost of carpet she only install carpet on 50% floor of the boat and painted the
other half in similar color. Alice advised the customers to wear closed-in footwear, and because
of this she does not thing that matting creates any trouble.

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Later, Xi and Marcos purchased two tickets of whale watching show, and while reading the
confirmation E-mail of booking, Xi notice the requirement of wearing closed-in footwear. Shoes
are wearing by Xi, but Marcos is wearing sandals and she ignored this clause.
When boat is located 30-minutes from the Mooloolaba Harbor at that time Marcos is
injured by fell on the floor. Instead of returning the boat to the port, Alice decided to continue the
search for whales and because of this life guards retrieved Marcos and Xi after 50 minutes from
the Marcos fell.
Because of the fell, Marcos suffered diagnosed with a severe concussion and a shattered
hip, and they are not able to attend the music event which causes them loss of $1,500 in
performance fees and merchandise sales.
In this case, all the necessary elements of negligence are satisfied:
Alice owns duty to take care towards the Marcos because there is close relation exists
between the two and Marcos can be considered as neighbor of Alice. Therefore, Alice owns duty
of care towards the Marcos.
Alice fails to take reasonable care of the plaintiff. In other words, action of the Alice fails to
match the standard of care which would be complying by any reasonable person in the similar
situations. Alice does not cover the complete floor with the high quality mat and this cause
breach of duty of care. Other two necessary elements of breach of duty are also present in this
case:
 Risk related to floor is foreseeable in nature.
 Action taken by the Alice is not reasonable in nature.

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Loss or injury is suffered by the Marcos. Marcos suffered severe injury and financial loss
also.
Injury or loss caused because of the breach of duty by the Alice. In this injury suffered to
Marcos is caused because of the wrong flooring done by the Alice.
However, it must be noted that amount of the damages reduced in this case because of the
contributory negligence. Contributory negligence resulted when person who suffer loss or injury
themselves contributed in the reason because of which such loss or injury occurred. In this case,
Marcos is also contributory negligent because she fails to complied with the instructions
provided by Alice for wearing closed in footwear’s. In case of contributory negligence, amount
of damages claimed by plaintiff is reduced as per the contribution made by plaintiff in the
negligence. Therefore, Marcos can claim damages under tort of negligence from Alice but
amount of damages is reduced up to extent.
Conclusion:
In the present case, Marcos can take action against Alice for negligence.

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Part B
a) In this Alice choose the approach of Ethical problem solving and in this context Alice
only consider fie questions while taking this action:
 Benefits and harms caused because of the action of the Alice, and possible
alternatives for the action. Alice consider the benefits and harm of the flooring in
this case
 Moral rights hold by the affected parties, and which course of action best
describes these rights. He consider the moral rights of the parties while offering
the free trip of whale watching.
 Which action treat every person same.
 Action of person which encourage the common good.
 Which course of action help in developing the moral virtues (Santa Clara
University, n.d.)?
b) Various factors and tensions are balanced by the Alice in this Scenario, and these factors
and tensions are stated below:
 Alice does not have enough amounts to cover the full floor of the boat with the
High quality carpet.
 Alice consider the safety of passengers to and make the requirement to wear
closed in footwear’s while visiting the boat, because these footwear’s ultimately
reduced the risk of falling.
 Alice offer free trip to passengers for saving the reputation of her business, and
because of this Xi and Marcos stand at back side of the board which increase the
risk of falling.

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 Alice fails to provide reasonable aid to Marcos and decided to search the whales
for more 15 minutes, because of which Marcos get the aid after 50 minutes of
falling.
C) Reasonable ethical approach which must be used by the Alice while taking the decisions in
this case:
The deontological class under ethical approaches considers the duties and obligations of the
people, and as per this approach people must complied with their obligations and duties while
taking any action (DSOF, n.d.). in other words, person must complied with his or her obligations
he owns towards the individual or society because follow the duty and obligation is considered
as ethical action.
In the present case, Alice must follow his or her obligations he owned towards his customers that
are safety of the consumers and he must make some other arrangements to for ensuring the
comfort of the consumers. She also own duty to provide medical help to the Marcos as soon as
possible but she failed to comply with this duty too.

Law 10
References:
ALRC, (2018). Authorising what would otherwise be a Tort. Retrieved on 2nd February 2018
from: https://www.alrc.gov.au/publications/right-sue-tort.
Chapman v Hearse (1961) 106 CLR 112.
Donoghue v Stevenson 1932 AC 562.
DSOF. Ethical theories. Retrieved on 2nd February 2018 from:
http://www.dsef.org/wp-content/uploads/2012/07/EthicalTheories.pdf.
Law Vision. The law of torts. Retrieved on 2nd February 2018 from:
http://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf.
Legal services commission. Negligence. Retrieved on 2nd February 2018 from:
https://www.lawhandbook.sa.gov.au/ch01s05.php.
Liability Act 2008- Section 22.
Liability Act 2008- Section 23.
Liability Act 2008- Section 8.
Santa Clara University. Thinking ethically. Retrieved on 2nd February 2018 from:
https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/thinking-ethically/.