LAW231: Detailed Analysis of Tort Law, Negligence, and Liability

This report analyzes a tort law case involving Bob, Laura, Meredith, and Kevin. The case explores negligence arising from a car accident caused by Bob's failure to check for oncoming traffic and Laura's excessive speed, resulting in Meredith's brain injury. The report examines the application of tort law principles, including duty of care, contributory negligence, and the assessment of damages. It also considers Kevin's liability for an injury sustained by Bob's son at a party due to inadequate safety measures. The analysis covers relevant legislation, case precedents (Caparo Industries Plc v Dickman and Lee v Carlton Crest Hotel), and the rights of the injured parties to sue and claim economic loss. The report concludes with a discussion of Bob and Kevin's liabilities, emphasizing the concepts of compensation and the principles of restitution in integrum.

Table of Contents
Introduction................................................................................................................................3
Facts of the Case........................................................................................................................3
Provision and Regulation Relating to the Case..........................................................................4
Applicability...............................................................................................................................6
Conclusion..................................................................................................................................7
References................................................................................................................................11

INTRODUCTION
Tort law comprises common law as well as legislation. Thus, tort can be referred as a civil
wrong other than breach of contract. In other words it can be referred as violation of
responsibility, potentially owed to the whole world, obliged by law1. Further, it exercises to
prevent an individual’s interest in his or her physical safety, tangible property, financial
resources or status. Intrusion with these interests can be restructured through an action for
reimbursement, generally in the form of unliquidated damages2. Moreover, the key objective
of tort law is to reinstate the harmed individual to the position in which he or she was prior to
the occurrence of torts. Present report emphasizes on right and duties to be applied in case of
tort relating to negligence. In order to provide appropriate explanation case studies have been
referred so that situation can be related easily.
FACTS OF THE CASE
In the present case Bob, a popular businessman in Squid Bay NSW was about to end the deal
on a shopping complex. When he was driving the car,and during that time his phone rang and
to receive the call he parks his car to the side of the road. Subsequent to talking on the phone
he had not checked the lane before going on the road. Due to the same, his car collided with
Laura’s car,and she was forced into the opposite lane leading to a collision of Laura’s car
with Meredith car. Furthermore, Meredith suffers the injury of the brain,but the Laura was
safe as she was not injured by accident. A severe injury was suffered by Bob also. Moreover,
the speed at which Laura was driving the car is more than a normal limit. Later on,the small
party was organised by Kevin in-house. He had planned some games like egg and spoon race,
three-legged races along with apple bobbing. The son of Bob, Craig, was also in the party and
1Bermingham, Vera, and Carol Brennan. Tort law directions. (Oxford University Press, 2018).
2Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law:
Responsibilities and Redress. (Wolters Kluwer law & business, 2016).

because of sweltering heat, he thinks to swim in the paddling pool.One metre water was
measured by Kevin for the game. Since no mark was put by Kevin regarding the depth of the
pool, the head of Craig was hit die to which he suffered severe injury.
PROVISION AND REGULATION RELATING TO THE CASE
Tort Law and Policy
The term tort is of Anglo-French origin, implies wrongful or unlawful act. It is a law of torts
that decides when a person has performed a civil wrong. Further, the law of torts also deals
with the other parts of civil liability like contracts, property law3. In short it can be stated that
tort law protects people from wrongful act to other and provide a right to claimant to sue
against same4.Moreover, it is believed that the existing gaps will be filled by torts law
through establishing new torts as per gaps crammed in contracts law in legislation for when
there is a gap5.
Further, there are some conditions under which only conduct will be considered as tort that is
it should be serious and illegal.Those conditions are, the conduct must be injurious to another
individual.It should include an official response that is perceived as doing justice among
parties.Apart from this, the conduct should not fit more contentedly in another group of
common law or reasonable wrongdoing6.
Negligent Tort
3Levine, Lawrence C., Dominick Vetri, Joan Vogel, and Ibrahim J. Gassama. Tort law and practice. (Carolina
Academic Press, 2016).
4Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and problems.
(Wolters Kluwer Law & Business, 2018).
5Simons, Kenneth W. "Victim Fault and Victim Strict Responsibility in Anglo-American Tort
Law." Journal of Tort Law 8, no. 1-2 (2017): 29-66.
6Luntz, Harold, David Hambly, Kylie Burns, Joachim Dietrich, Neil Foster, Genevieve Grant, and Sirko
Harder. Torts: cases and commentary. (LexisNexis Butterworths, 2017).

A negligent tort can be defined as a tort conducted by apersonwho fails to serve as a rational
individual to someone to whom he or she owes,as obliged by law under situations7. They are
not intentional,and it justleads to an injury due to the violation of duty. Some instances of
negligent torts are car accidents, slip and fall accident,mismanagement cases of medical.
Furthermore, constituents of negligent torts are,there should be a violation of the duty to a
recognized standard of care.Violation of that duty was the real cause and the contiguous
cause of the injury to the claimant8. Moreover, pretender was injured too, which treatment is
provided by law.
Contributory Carelessness
With accordance to subsection 1 of section 102 of law of negligence and limitation of
liability act 2008 when a damage is suffered by an individual as the result of his own mistake
and part of the mistake of another individual, a claim regarding that damage is not
accountable to be overwhelmed by reason of the fault of entity suffering the damage, but the
damages recoverable regarding the same should be decreased to an extent as the court
considers just and reasonable having regard to plaintiff share for damage9.
Section 2 does not operate to overwhelm any defence taking place in a contract. Further, it
has been specified that court must determine and record the total damages which separately
from any limitation of liability specified by enactment or any limitation of the jurisdiction of
the court, should have been recoverable when the plaintiff bad net been at fault10.
Proclaims by third parties
7Epstein, Richard A., and Catherine M. Sharkey. Cases and materials on torts. (Wolters Kluwer Law &
Business, 2016).
8Mackie, Tom. "Proving liability for highly and fully automated vehicle accidents in Australia." Computer Law
& Security Review 34, no. 6 (2018): 1314-1332.
9Field, Iain D. "Contributory Negligence and the Rule of Avoidable Losses." Oxford Journal of Legal
Studies (2018).
10Mendelson, Danuta. The new law of torts. (Oxford University Press, 2014).

According to section104 of the law of negligence and limitation of liability act 2008:
a) An individual that is harmed and he suffers from damagesdue topartlyof his own fault
and partly from the mistake of another person.
b) Through reason of damage of injured individual third party bears damages whether by
way of loss of society or services of an injured person or else
The mistake of the harmed individual should, in a claim through the third party for the
damage which he had experienced, be consideredin section 102 for the objective of
decreasing damages recoverable by the third person since if the mistake of the injured entity
were the fault of the third person11.
APPLICABILITY
The same provisions will be applied in the present case as the accident has taken place due to
the partly mistake of Bob and partly the fault of Laura. Due to the fault of both the
individuals the accident was suffered by Meredith as the core of negligence exist in a
significant manner. The landmark case of Caparo Industries Plc v Dickman [1990] of
England, establish a threefold test for a duty of care12. It was concluded in a specified case
that harm should be rationally foreseeable, the relationship of immediacy among the claimant
and defendant should be there and it should be reasonable, just and fair to oblige the liability.
Therefore, these serve as a code of conduct for courts in introducing a duty of care, much of
principle is still at the judgment of judges. In the presentcase, it could be assessed that harm
is foreseeably reasonable in both the case as if Bob had checked whether any other car is
approaching or not and even if Laura was driving in limited speed than it was possible that no
11Mendelson, George, and DanutaMendelson. "Methods of Ascertainment of Personal
Damage in Australia." In Personal Injury and Damage Ascertainment under Civil Law, pp.
467-504. Springer, Cham, 2016.
12Caparo Industries PLC v Dickman [1990] UKHL 2

collision would have occurred with Bob’s car. There is a relation between claimant and
defendant,i.e. the collision of a car and severe injury to Meredith. Lastly, it is fair to impose
liability by Meredith as a huge health loss was borne due to the negligence of Bob and
Laura.Moreover, in another case, as no mark was placed by Kevin relating to the depth of
water, the head of Craig struck when he dived in the pool to swim. Since it is the
responsibility of Kevin to be careful as the children were also there at the party but he has not
paidattention to the accident has occurred. The mark or everyone could be warned not to go
near the pool because the game was setup there would be exercised by Kevin. Thus, as the
responsibilities are not compiled in an appropriate manner due to which Meredith and Craig
have experienced an accident, therefore, the fair and reasonable compensation has to be
provided to them.
The decision of case law of Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] can be
applied in present case in which it was considerable amount was provided to the claimant
against the negligent act. In the specifiedcase, a complete psychological collapse occurred
after witnessing the accident. Thus, in the present case also the loss can be claimed by Bob
after witnessing the loss of his son due to the accident.
CONCLUSION
It can be concluded from the above discussion that irresponsible behaviour has been
presented by Bob and Laura. Since it is the duty of Bob to check that if any car is coming
prior to pulling out onto the road. In addition to this, every person should drive their vehicles
on normal speed,but in the presentcase, Laura was driving at a very high speed due to which
Meredith suffers a brain injury. Thus the following rights are available to Meredith and
Craig:
Right to sue

As a tort is a legal wrong action in which is committed by an individual against another
person or organization for which usually remedial action is taken for the damages. Thus, right
to sue is provided to the claimant but he requires proving that tort is justified.
Right to claim an economic loss for damages
Damages are referred to as the monetary value of the harm done based on the principle of
restitution in integrum. The objective related with the same is that it isconnected with
quantification of loss relating to the degree of breach of care. As once the breach of duty is
proven, it is necessary to compensate the victim for loss. As in the presentcase, it can be
assessed that Meredith is required proving the negligence behaviour of Bob and Laura and
further they will be required to pay off for the loss relating to severe brain injury. In another
case, Craig will require to prove that Kevin did not makean appropriate arrangement for the
safety of kids during the games and due to same Craig suffered serious injuries. Thus he is
liable to pay off for the damages.
Liability of Bob and Kevin:
Liability to pay Compensation
Compensation is the fundamental jurisdiction for tortuous liability. It is considered as fair and
reasonable that an individual who has caused an injury must provide the compensation for
rectification of damaged done by him13. Thus, the main objective behind giving the
compensation is to place the person who is injured in the same position they would have been
in but for the wrongdoing which is conducted. Moreover, as per the study of Erbacher (2017),
compensation most evidentlyimplements to the tort of negligence and evaluation of damages
13Grant, Genevieve M. "Judging gender in tort thresholds." Griffith Law Review 25, no. 1 (2016): 104-128.

for personal harm. The concept of mistake and justice are bound in the assessment of
reimbursement14.
Further, mistake covered in case of Perre v Apand (1999) specifies that fault is the root cause
of the law of negligence15. Thus, Mc Hugh J asserts that negligence at common law is yet a
fault-based system. It would offence present society standards to oblige liability on a
defendant for acts or faults which he or she could not detain would damage the interest of
another. Furthermore, the concept of mistake is difficult, does not comprise deliberated
conducts but involves negligence16. Additionally, in the case of Perre v Apand, Mc Hugh
defines the tort law as an instrument of corrective justice, implying that the law of
tortsobliges those who have injured others to correct their conduct. Thus, compensation
should be provided to Craig and Meredith by Bob, Laura and Kevin as the accident has
occurred due to the negligence of them.
Liability for compensatory damages
Damages are specified as a reward paid to an individual as a loss or injury. These are
classified as compensatory as well as punitive damages. Compensatory damages comprise
loss of property, general damages, medical expenses etc. Thus, in present case Kevin is liable
for medical expenses of Craig, on the contrary, Bob and Laura are responsible for damages of
severe brain injury of Meredith’s as well as damages of the car.
14Erbacher, Sharon. Negligence and illegality. (Bloomsbury Publishing, 2017).
15Perre v Apand Pty Ltd - [1999] HCA 36
16Graziano, Thomas Kadner. Comparative Tort Law: Cases, Materials, and Exercises. (Routledge, 2018).

REFERENCES
Bermingham, Vera, and Carol Brennan. Tort law directions. (Oxford University Press, 2018).
Best, Arthur, David W. Barnes, and Nicholas Kahn-Fogel. Basic tort law: cases, statutes, and
problems. (Wolters Kluwer Law & Business, 2018).
Epstein, Richard A., and Catherine M. Sharkey. Cases and materials on torts. (Wolters
Kluwer Law & Business, 2016).
Erbacher, Sharon. Negligence and illegality. (Bloomsbury Publishing, 2017).
Field, Iain D. "Contributory Negligence and the Rule of Avoidable Losses." Oxford Journal
of Legal Studies (2018).
Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities
and Redress. (Wolters Kluwer law & business, 2016).
Grant, Genevieve M. "Judging gender in tort thresholds." Griffith Law Review 25, no. 1
(2016): 104-128.
Graziano, Thomas Kadner. Comparative Tort Law: Cases, Materials, and Exercises.
(Routledge, 2018).
Levine, Lawrence C., Dominick Vetri, Joan Vogel, and Ibrahim J. Gassama. Tort law and
practice. (Carolina Academic Press, 2016).
Luntz, Harold, David Hambly, Kylie Burns, Joachim Dietrich, Neil Foster, Genevieve Grant,
and Sirko Harder. Torts: cases and commentary. (LexisNexis Butterworths, 2017).
Mackie, Tom. "Proving liability for highly and fully automated vehicle accidents in
Australia." Computer Law & Security Review 34, no. 6 (2018): 1314-1332.

Mendelson, Danuta. The new law of torts. (Oxford University Press, 2014).
Mendelson, George, and DanutaMendelson. "Methods of Ascertainment of Personal Damage
in Australia." In Personal Injury and Damage Ascertainment under Civil Law, pp. 467-504.
Springer, Cham, 2016.
Simons, Kenneth W. "Victim Fault and Victim Strict Responsibility in Anglo-American Tort
Law." Journal of Tort Law 8, no. 1-2 (2017): 29-66.
Stickley, Amanda P. Australian torts law. (LexisNexis Butterworths, 2016).