6Fflk001 Law Of Tort: Assess Assessment Answers

Carly and Pablo have just got engaged and to celebrate they arrange a visit to Funtastic World, a popular theme park. They are excited to try out the new ride, ‘The Beast’ which has recently opened. The morning of their visit, Tom, an engineer, carries out some lastminute safety checks to the ride, but he is in a rush because he turned up very late for work due to a traffic jam. One of the bolts has not been properly tightened and Carly falls out of her seat and plunges to the ground, causing very serious injuries.

Eva, a paramedic, who is first on the scene, is so horrified by Carly’s injuries that she suffers Post Traumatic Stress Disorder and is unable to return to work.

Pablo, who is sitting next to Carly, is able to stop himself from falling out of the seat, but since the accident he has been having flashbacks and is now terrified of heights.

Assess the possible liability of the parties.

Donoghue v Stevenson [1932] is a good example that shows how negligence manifests itself. In this case, principles such as the duty of care as well as the principle of fault. The facts state that Donoghue found a decomposing snail in her beer bottle after pouring the remaining content on her ice cream. This shocked her and she suffered gastroenteritis and nervous shock. As a result, she sued the manufacturer for damages. Grant v Australian Knitting Mills (AKR) (1936) followed the precedent set by Donoghue V Stevenson hence developing negligence law. This was where the duty of care must be depicted by employees and employers equally. Breach of duty is then determined after establishing that one has a duty of care towards the plaintiff. This is when it is decided whether the duty was breached or not. A plaintiff should also show that he or she sustained serious injuries, harm or lost property from breaching duty of care. This ultimately leads to the payment of damages to the plaintiff.

In the case scenario at hand, Tom has a duty of care which dictates that as an engineer, all rides undergo safety checks before they are used by the public. His actions lead to safety or harm. To start with, factual causation has to be proven, in this case, Tom performed the checks hurriedly making the seat not secure and in the end, Carly falls out of the seat and sustains serious injuries. If it was not for Toms’ state of being in a hurry, Carly could not have fallen. In that regard, all elements have been proven. Tom has the duty of care to others such as Carry, he breaches his duty by performing safety checks hurriedly, his act leads to the fall of Carry making her sustain injuries and causation is established by a foreseeable consequence because of his acts.

In addition Tom is liable for the trauma that the accident has caused on Eve. She was terrified such that she now has Post Traumatic Stress Disorder. As such, she can sue for damages since she is not able to go to work again after the incident. The same applies to Pablo who has a fear for heights. Pablo can sue Tom for damages because Tom had a duty of care and he failed to act as desired.

It is therefore prudent for Tom to pay for the injuries sustained. This can only happen if Carry sues him. In some instances, the company can also be sued because of vicarious liability. Fantastic World may be vicariously liable for Tom’s actions especially if it is established that he is insured by the company.

References

Donoghue v Stevenson [1932] AC 532

Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1, (1935) 54 CLR 49 (21 October 1935), Privy Council (on appeal from Australia).

Wallace v Kam [2013] HCA 19, High Court (Australia).

Pandey, R. (2017). Is the Commissioner immune from the tort of negligence?. Taxation in Australia, 51(9), 494.

Dillon v. Legg, 68 Cal. 2d 728 (1968) and Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916 (1980).