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MPA604 Liverpool Catholic Club Ltd v Moor

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Advise Molly whether she could sue the Phillip Island eco resort. What defences could be raised by the resort?

Answer:

Relevant Law


The law of negligence imposes liabilities on the defendant for the losses that are incurred upon the plaintiff because of his actions. The defendant is held to be negligent when: (Latimer 2012)

  1. The defendant is under the legal duty to provide care to the plaintiff. The duty is imposed upon the defendant provided the plaintiff is the neighbor of the defendant (Donoghue v Stevenson[1932]). The plaintiff is neighbor when the acts/omission of the defendant impacts the plaintiff directly (Liverpool Catholic Club Ltd v Moor [2014]. Also, the plaintiff must be reasonably foreseeable by the defendant (Council of the Shire of Sutherland v Heyman - [1985])
  2. When the legal duty of care is not met by the defendant. The legal duty is violated when the level of care that is expected at any given situation is not met and thus falls short of the required level of care (Bolton v. Stone[1951]. The level of care is different at different situations, that is, higher the danger higher the level of care and lower the danger and lower the level of care (Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979 (1987).
  • Because of the breach there is loss that is caused to the plaintiff. The loss that is caused must not be remote in nature and should be caused because of the acts/omissions of the defendant (Australian Safeway Stores Pty Ltd v. Zaluzna(1987).

When all the three elements are combined with then there is negligence on the part of the defendant.

But, the defendant can take the defense of contributory negligence by proving that the loss that is imposed on the plaintiff is because of the acts of the plaintiff as well along with the acts of the defendant. So, the plaintiff has also contributed for his own loss and thus the liability of the defendant should be reduced proportionality.

Application of law

Series Phillip Island Eco is a resort wherein there are a series of huts which are grouped together. The huts are accessed with the help of brick paths. The resort has a swimming pool along with which there is a communal dining room which is equipped with changing rooms and toilets. All the guests are given towels when using the pool.

Also, there is a beach which is part of the resort and the brochure of the Series Phillip Island Eco describe as a perfect place for sunbathing. The secluded rocky beach can be reached with the help of 2 unpaved dirt paths.

Molly is one of the guests at the resort.

Now, at this stage it is submitted that the Series Phillip Island Eco is under a duty of care against Molly. This is because Series Phillip Island Eco is aware that Molly is one of the guests at the resort and any actions or the services that are provided by Series Phillip Island Eco will affect Molly directly and thus Molly and the resort are neighbors of each other. Also, Series Phillip Island Eco can reasonably foresee the presence of Molly. So, there is a duty of care that is imposed on Series Phillip Island Eco to provide such services and take such actions which does not hamper Molly in any manner whatsoever (Donoghue v Stevenson).

However, Series Phillip Island Eco is not able to cater the duty that is imposed upon it and there is breach of duty of care. It is submitted that at the resort there was a deep rock pool wherein people are seen swimming and can be reached by climbing over some rocks. Molly wished to dive at the same pool. However, the pool is not safe for diving. This information was nowhere displayed by Series Phillip Island Eco as there were no sign boards which provide a warning of any danger that is present at the pool. The staff of the resort are trained that they must advice the guests that the pool is not safe for diving. However, no such advice is also furnished by the staff of Series Phillip Island Eco. Thus, the level of care that is expected from the staff of Series Phillip Island Eco and no display of warning notices has resulted in the violation of the duty of care that is expected from Series Phillip Island Eco in the given situation (Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979 (1987).  

Series Phillip Island Eco is aware that guests are using the pool which is not safe for diving and still has not made any attempt to bring such danger in the notice of the guests nor the staff of the resort was diligent enough to bring the danger within the notice of the guests. Thus, there is a clear breach of duty of care on the part of Series Phillip Island Eco.

Now, it is submitted that there was a large rock at the edge of the rock. Molly founds the same perfect for diving. There were no staff of the Series Phillip Island Eco that were present which can gave advice to Molly that the pool is not safe or diving. Thus, Molly dives in the pool and hit her head on a submerged rock at the edge of the pool. The rock was not by Molly not there were any notice that brings that same within the knowledge of Molly. Because of the fall, Molly suffers with severe spine and head injuries.

It is now submitted that the injuries that are caused to Molly is because of the breach of duty of care on the part of Series Phillip Island Eco and thus there is presence of causation. The breach of duty of care is the result of the loss that is caused to Molly. If there would have been warning noticed or if the staff would have advice Molly, then, there are chances that the loss would have not been suffered by Molly.

Further, Series Phillip Island Eco can reasonably foresee the loss that is suffered Molly. Series Phillip Island Eco is aware that people are swimming at such pool and there are full chances that someone might suffer injuries as the pool is not safe for swimming. Thus, the suffered by Molly is not remote.

So, the resort is negligent is its actions.

However, Series Phillip Island Eco can take the defense that Molly has not asked any person before she went for the rocky beach. Thus, she has also contributed to her own risk as she did not ask any person of the resort before diving. So, the resort can take the defense of contributory negligence.

Conclusion

It is concluded that the resort is negligent in its actions for the losses of Molly. Further, the resort can take the defense of contributory negligence and can reduce its liabilities accordingly. 

Reference List

Books/Articles/Journals

Paul Latimer.  Australian Business Law. 2012. CCH Australia Limited. 

Case Laws

Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 61 A.L.J.R. 180.

Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078 

Council of the Shire of Sutherland v Heyman - [1985] HCA 41. 

Donoghue v Stevenson [1932].

Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394.

San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979 (1987) 61 A.L.J.R. 41

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