- Richie Rich (RR) v Reggie Van Dough (RVD)
Plaintiff’s harm = broken nose
Defendant’s Conduct = failure to correct damaged electric cables, which resulted in a horse rearing up as a result of the electric shock from live electric cables underneath the field
Duty– (a) identify the relationship between the two parties; (b) state the scope of duty; (c) confirm that the Plaintiff’s harm comes within the scope of duty.
- Identify the relationship between the two parties
In this case, there is an established occupier to entrant relationship.
Any careless conduct by an occupier can cause some or any kind of harm to an entrant.
- Confirm that the plaintiff’s harm comes within the scope
Yes- injury comes within the risk of harm, pursuant to Australian Safeway Stores v Zaluznab.
The plaintiff must prove that he is within the reasonably foreseeable class of plaintiffs. Since he is a highly valued member of the Privileged Polo Club, Richie Rich is within the class, having captained its polo team to many victories during the Club’s five-year history. According to Sullivan v. Moody, the duty of care will be imposed when it is reasonable in all circumstances. The circumstances to be considered in this case are the proximity between Richie Rich and Reggie, the control that Reggie had over the situation, and whether Richie Rich is dependent on Reggie. In this case, Richie is dependent on Reggie because Reggie is the club owner, and the harm suffered by Richie is due to Reggie’s failure to maintain the electric cables.
Breach- According to s 9(1), the breach’s test is that of a reasonable man: the question would be what a reasonable person under the circumstances would do or omit to do. The factors considered in establishing breach is magnitude of risk: the risk was foreseeable; the risk was not insignificant; and in the circumstances a reasonable person in the position would have taken the precautions.
- Breach of duty = Failure to correct the damaged live electric cables
- Foreseeability of risk
In determining whether the risk was foreseeable, it is reasonably foreseeable the exposed live wires are likely to cause harm hence the risk is reasonably foreseeable.
The harm must not be trivial pursuant to Vincent v Woolworths Ltd. The harm in this case was that Richie injured his nose, therefore, the risk is significant.
In the circumstances, a reasonable person in Reggie’s position would have appreciated the risk electric cables are likely to expose one to and repaired the electric cables. Therefore, in applying the reasonableness test, Reggie failed to act reasonably.
- S 9(2) (a) likelihood of harm
The greater the likelihood of injury, the greater the amount of caution required. In this case, many of Richie’s teammates have suffered serious injuries playing in the fast-paced game as distinguished from Bolton v. Stone whereby in the last 30 years, a ball had been hit out only on 6 occasions. Therefore, the likelihood of injury, in this case, is relatively high. Reggie should have taken necessary precautions like repairing the damaged electric cable to avoid Richie and his teammates’ injury.
- s 9(2) (b) seriousness of harm
The more serious the injury is likely to be, the more precaution that should be taken. In this case, live electric cables are likely to cause serious injuries. Therefore, they should be covered to prevent injury.
- s 9(2) (c ) practicability of precautions
A reasonable person in Reggie’s position would have appreciated the risk electric cables are likely to expose one to and repaired the electric cables. Therefore, in applying the reasonableness test, Reggie failed to act reasonably.
The breach is assessed objectively and prospectively. The alleged wrong wrongful conduct in this case is Reggie’s failure to repair and cover the live electric wires. The available precautions would be covering the wires to prevent injury. However, s (10)(c), the subsequent taking of action that would( had the action been taken earlier) have avoided a risk of harm does not in itself give rise to or affect liability in relation to the risk and does not in itself constitute an admission of liability in connection with the risk.
Damage/ Causation. s 11(1)(b) states that there must be a causal link between the Defendant’s actions and the Plaintiff’s injury. Causation is determined considering three factors, i.e., factual causation, legal causation, and remoteness.
To establish causation, the ‘but-for-test’ is invoked. Damage must be recognized as it is an essential ingredient in an action of negligence per Tabet v Gett. S 11(1) and (2) state that a decision that a breach of duty caused particular harm comprises of the following elements:(a) that the breach was a necessary condition of the occurrence of the harm , (b) that it is appropriate for the scope of liability of the person in breach to extend to harm so caused (scope of liability).
- Necessary condition
To prove necessary condition, Richie must show that he would not have suffered damage in question ‘but-for’ the defendant’s negligent act or omission. In Richie’s case, he must prove that he would not have suffered damage in not Reggie’s omission. If Reggie had repaired the live electric cables, the horse would not rear up in response to the electric shock it experienced from live electric cables.
S 11(4), the Courts will consider whether and why responsibility for breach should be imposed on Reggie.
In determining legal causation, the chain between the act and the injury suffered must not be interrupted. If there are intervening acts in between, the court must determine the effect of such intervention on D’s liability.
Intervening acts may result from an act of a third party, intervening act of the plaintiff, and intervening natural event. An intervening natural event arises where an independently occurring natural event causes damage that would not have occurred but for the defendant’s breach. The Defendant’s breach has not increased the likelihood that the plaintiff will suffer damage or rendered him more susceptible to damage. It will not be treated as the cause of damage, and the natural event will be considered an intervening act, thereby breaking the chain of causation. In this case, the field’s dampness was aggravated by a shower of rain minutes before the start of the match. The natural event, which is rain, cannot be considered an intervening act.
The intervening acts of a third party are also considered. Where the defendant’s act had done no more than providing the occasion for an entirely dependent act by a third party, and that act is the immediate cause of the plaintiff’s damage. The third-party can be considered a nova causa interveniens, and the defendant is not liable. In Richie’s case, if Reggie claims that the ambulance driver’s actions are intervening acts of the third party; hence he is not liable, he may fail. Reggie may fail because, due to the accident, Richie sustained a broken toe injury, and the accident did not further the broken nose injury. The ambulance crashing does not constitute a third party’s intervening act because it gave rise to different damage.
In determining remoteness of damage, the Courts consider whether the damages are too far removed from the Defendant’s conduct. It becomes unconscionable to hold Defendant responsible for his actions or omissions. If the defendant’s actions are too far removed, then they are considered remote hence it becomes unjust and against public policy to allow them to pay the defendant. To establish whether the damage is not remote, the damage must be of a foreseeable kind. In Richie’s case, he suffered damage due to the exposed underground wires which were left by Reggie. The risk of an exposed current wire is reasonably foreseeable, and as such, the damage is not too remote to release Reggie from liability.
Defences. If Richie Rich successfully proves that Reggie was negligent to recover damages, Reggie may bring up the following defences. First, intoxication, according to Section 47 of the Civil Liability Act, if the person who suffers harm is intoxicated, the mandatory damages can reduce by at least 25%. An intoxicated person is believed to have impaired judgment, and him or her highly unlikely to appreciate the risk of harm. In this case, the investigations reveal that Richie had consumed cocaine before the match. Cocaine is considered an intoxicant that impairs judgment. A reasonable person in Richie’s position would not have consumed cocaine before undertaking the race, and Richie’s actions contributed to him being exposed to injury. Therefore, the damages are likely to be reduced by at least 25% due to Richie’s actions of consuming cocaine.
Reggie can also rely on Volenti Non fiti injuria. To successfully rely on this defence, the defendant must show that the plaintiff was aware of the risk, the plaintiff appreciated the risk, and the plaintiff accepted the risk. According to section 16 of the Civil Liability Act, a person is not liable in negligence for harm suffered by another person due to the materialization of inherent risk. Per section 16(2), an inherent risk is a risk of something occurring that cannot be avoided by exercising reasonable care and skill. As held in Rootes v Shelton, the plaintiff had voluntarily accepted the risks associated with the sport but did not accept the risk of the driver of the boat carelessly failing to keep a proper watch and warn him of any obstruction. In Richie’s case, the field’s dampness increased the hazards inherent in the fast-paced competition, but this did not deter valiant Richie. Richie accepted the sport’s risks by racing in a wet field, but he did not accept the risk of racing on a field with live current wires, and Reggie did not warn him of the existence of such risk. If Reggie relies on Volenti Non-fiti injuria, he is unlikely to succeed.
Reggie can also rely on children’s contributory negligence to the left the tap open, and as a result of the children’s actions, water flooded the fields. The Children turned on the tap so that they could create muddles for them to play. As held in Kelly v Bega Valley County Council in determining contributory negligence of children, the test is an objective one. The conduct of a particular child is measured according to an infant’s hypothetical conduct of the same age. The Courts are likely to consider the conduct of the children dependent on their age. If the Courts found them culpable, then they can be contributorily negligent.
Reggie can also invoke the dangerous recreation activity defence. Section 18 of the Civil Liability Act defines a dangerous recreational activity as an activity engaged in for leisure, enjoyment, or relaxation, which involves a significant degree of risk of physical harm. The defendant must prove the defence. A dangerous activity is determined objectively and prospectively. The determination of whether conduct is dangerous varies from one case to another, and it depends on the facts of the case. Section 13 of the Civil Liability Act states that the risk should be obvious to a reasonable person in the position of the plaintiff; risk can be obvious even if it has a low probability of happening, the risk does not need to be prominent, conspicuous, or physically observable and the risk is not obvious if created by failure on a person to operate properly, maintain, replace, prepare or care for a thing unless the failure is obvious. As held in Mikronis v Adams, the risk of horse riding in a trail is not a dangerous recreational activity, and the risk of falling off a horse is obvious. Still, the risk of falling off because the saddle slipped was not obvious. In Richie’s case, he prided himself in never flinching from a challenge. Therefore, whether Richie’s actions of racing in a damp polo field amounted to dangerous recreational activity. Racing in a polo field is not a dangerous recreational activity. However, racing in a damp polo field can be considered a dangerous recreational activity because of the possible risks to a reasonable person riding the house. Richie can be considered a reasonable man because he has engaged in the activity for over 5 years.
In conclusion, Richie Rich may prove that Reggie was under duty per his an occupier-entrant relationship with Reggie, Reggie breached the duty of care, and as a result of the breach, Richie broke his son. However, Reggie may successfully defend himself relying on the contributory negligence defence of intoxication and dangerous recreation activity hence reducing the amount of damages that Reggie will be liable for at least 25%.
1b. Richie Rich (RR) V. Dr. House (Dr. H)
Plaintiff’s harm = Extreme allergic reaction resulting in paralysis of his lower limbs. Also, Richie’s preexisting condition increased limb infections’ risk, and his broken toe developed gangrene requiring amputation.
Defendant’s Conduct= Failure of Dr. House to warn Richie that 1 in 20,000 risk nerve damage associated with reconstructive surgery.
Duty: (a) Identify the relationship between the parties: (b) state the scope of the duty; (c) confirm that the Plaintiff’s harm comes within the scope.
- Identify the relationship between the parties
There is an established doctor to patient relationship.
- State the scope of the duty
In an established doctor-patient relationship, any careless conduct by doctor can cause some or any kind of harm to a patient.
- Confirm that the plaintiff’s harm comes within the scope
Yes- injury comes within the risk of harm, pursuant to Rogers v. Whitetaker
In establishing duty, the test applied is whether a reasonable person in the defendant’s position would have foreseen that there was a real risk that carelessness on his part could cause harm to people in the plaintiff’s position.
Breach of duty. S 9 1a, b and c and Section 22(1) lays out the test required to breach duty for professionals.
- Foreseeability of the risk
In this case it is reasonably foreseeable that failure to warn can lead to injuries such as extreme allergic reactions that were experienced by Richie.
Dr. House failed to warn Richie of the 1 in 20,000 risk of nerve damage associated with the reconstructive surgery; the risk is considered significant; hence, Dr. House can be held to have breached the duty of care.
S 22(1) states that a professional does not breach a duty arising from the provision of professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional service. Further, as held in Rogers v. Whitetaker, the proactive duty to warn test is applied. Dr. House failed to practice the required standard of care.
- s 9(2)a likelihood of harm
The greater the likelihood of injury, the greater the amount of caution required. Even though 1 in 20,000 are likely to suffer harm, Dr. House is required take reasonable care.
- s 9(2) b seriousness of harm
The harm likely to harm for failure to warn is nerve damage associated with the reconstructive surgery. Nerve damage harm is so serious that the doctor should have properly carried out his due diligence.
- s 9 (2) c practicability of precautions
The precautions that Dr. House was supposed to take in this instance he was supposed to properly warn Richie. He failed to and the harm happened.
Causation– There are no remoteness concerns; hence the test that will be applied is the ‘but-for test’ according to s 11(3). As held in the Kensington case, there must be a direct causal link between the defendant’s conduct and the harm suffered by the plaintiff. Richie claims that he could not have proceeded with the reconstructive surgery if he could have been warned. Despite the surgery being a success, Richie had an unusual susceptibility to the anesthetic used in operation. He suffered an extreme allergic reaction resulting in paralysis in his lower limbs. Based on the facts, there is a direct causal link between the actions of Dr. House and the injury suffered by Richie.
Remoteness of damage. In determining remoteness of damage, the Courts consider whether the damages are too far removed from the Defendant’s conduct. In this Case the Courts will apply the eggshell rule pursuant to Kavanagh v Akhtar, the rule states that, in a tort claim, the unexpected vulnerability of an injured person is nor a valid defense to the seriousness of any injury caused to them. The defendant will be held liable for all consequences resulting from his acts or omissions, even if the victim suffers an unusually high level of damage. In Richie’s case, even though he had a high susceptibility to anaesethic used in the operation and as a result he suffered an extreme allergic reaction, Dr. House can be held liable because relying on the eggshell skull rule which requires the plaintiff to be taken as he or she is.
Defences: If Richie successfully proves negligence, Dr. House can claim that Richie was contributorily negligent by attempting to kill himself by overdosing on a cocktail description pain medication. To prove contributory negligence, Dr. House must show that Richie failed to take reasonable care for his safety, contributing to Richie’s harm.
In Conclusion, Richie is likely to show that there exists a duty of care, Dr. House breached the duty of care, there was a direct causal link between Dr. House’s inaction and the harm suffered by Richie. However, Dr. House can allege contributory negligence by Richie.
- The Likely ISV of all his injuries and total general damages payout
General damages as defined in section 51 of the Civil Liability Act are damages for pain and suffering, loss of amenities of life, loss of expectation of life, or disfigurement.
Step 1. In this case, the maximum dominant ISV is 60 that is based on (60-80) 60. The ISV does not adequately reflect the adverse impact of multiple injuries. Because it does not adequately reflect the adverse impact, a new range should be established.
The minimum of the new range will be 60. To mean anything less than 60 will be inadequate.
The maximum of the new range will be 1.25 x the maximum dominant ISV
1.25×80 = 100
The new ISV range is 60-100
Step 2. The next step will be choosing an ISV within the new range using section 9 considerations. Section 9 considerations include: loss of amenities, life expectancy, injured person’s age, degree of insight, pain and suffering and other injuries other than the dominant injury. In increasing the value of ISV I will consider the fact that Richie is aware of his amputated leg and he sits on a wheelchair looking at his amputated leg, Richie is unable to go to work because of the injuries, and that he is no longer able to play. I would also consider Richie’s age, Richie is 40 years old and he is unlikely to retire soon as a Chief Financial Officer.
Step 3. Based on the considerations above, I would suggest an ISV of 82.
Step 4. Determination of quantum of non-pecuniary damages
According to Schedule 7, Base amount = $290, 200 + variable amount (82-80) x $ 5,280
Total general damages = $ 290, 200 + (82-80) x $ 5, 280
- Whether he is entitled to gratuitous care damages
Section 59 of the Civil Liability Act states that damages for gratuitous services can be awarded if they are necessary; the need for services arises solely out of the injury in relation to which damages are awarded; and the services to be provided, are to be provided for at least 6 hours per week and for at least 6 months. Further, damages will not be awarded if the gratuitous services are of the same kind as those provided before the breach of duty happened. In Richie’s case, the girlfriend works at least 20 hours a week looking after Richie and his garden. Also, the gratuitous services rendered by Richie’s girlfriend are necessary and are as a result of the injury. Therefore, Richie is entitled to gratuitous care damages.
- Whether he can recover for lost years and the principle relevant to his loss of earning capacity
According to section 55(2) the court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. In Richie’s case the principle relevant to his case is actual loss of earnings, his age and permanent impairment as a result of the injuries. Therefore, Richie will recover the lost years.
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